Church/State Opinion

The controversial Ten Commandments display at ...

The controversial Ten Commandments display at the Texas State Capitol. (Photo credit: Wikipedia)

Political Science 102 – The Constitution and Rights of Americans (Fall 2009)

Church/State Opinion

[Students and professors, please read.]

The installing of the Ten Commandments monument in the lobby of the Oklahoma State Judicial Building by Chief Justice Jim Turner establishes religion and is therefore unconstitutional.  Chief Justice Turner does not claim “ceremonial deism,” or appeal to acknowledging the role of religion in our history, as others have in the past.  The monument was installed for admittedly religious purposes in a government building, breaching the wall between church and state erected by the Religion Clauses of the First Amendment to protect individual rights against majority rule, thereby rendering all related polls irrelevant.  Previous cases relevant to this one, from which we will draw, are Engel v. Vitale (1962), Sherbert v. Verner (1963), Lemon v. Kurtzman (1971), Elk Grove Unified School District v. Newdow (2004) and VanOrden v. Perry (2005).

We agree with Justice Black, when he stated in the opinion of the court regarding Engel v. Vitale (1962), that “It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance…” (744).  The same can be said for the erecting of religious monuments.  It is not hostile against religion to prevent one or more individual’s religious freedom from impinging on another’s or others’, nor to prevent a religious individual from abusing his or her position of power in the government (which is to remain neutral to religion) to establish their religion over that of another’s; rather, it is respectful of each individual’s religious freedom.  Chief Justice Jim Turner uses his office to breach the wall between church and state in violation of the Establishment Clause, and in violation of others’ right to Free Expression.  Applying the Sherbert test [(Sherbert v. Verner (1963)], there is no compelling state interest which would justify such violation.  Applying the Lemon test [Lemon v. Kurtzman (1971)], 1) Chief Justice Turner’s purpose in erecting the monument is clearly religious, not secular, 2) it clearly advances his religion, and 3) it is a clear example of “excessive government entanglement with religion.”

In Van Orden v. Perry (2005), Chief Justice Rehnquist, and Justices Scalia, Kennedy and Thomas (Scalia, Thomas and Breyer each concurring separately) all decided that it was constitutional to display the Ten Commandments in the park surrounding the Texas State Capitol, with the reasoning that the purpose for displaying them was secular in that it acknowledged the role of religion in the history of the nation in which Texas is a state, and that to strike all mention of that history from the record would evince hostility to religion, which would be unconstitutional.  However, it could be argued that the historical role of religion was an unconstitutional one, regardless of the original intentions of the fathers of this nation, who also excluded many minorities from the “we” in “We the people…”.  In Elk Grove Unified School District v. Newdow (2004), Chief Justice Rehnquist said that the phrase “under God” “is in no sense a prayer, nor an endorsement of any religion. …Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one…” (170).  Such “ceremonial deism” is an offense to those who worship God with integrity, and a violation of the free expression of those who do not worship God at all.  That we practiced such violations of freedom in our nation’s history is not something to be proud of, no more than we would be proud of our history regarding slavery–you will see no monument to slavery in any U.S. government building or land.  To prevent further violations is not hostile to religion, it is hostile to practices which prevent religious freedom.  To quote the preamble to the “Virginia Bill for Religious Liberty,” “Almighty God hath created the mind free” — (irony aside) that in itself suggests that He would smile upon our Religion Clauses, and frown upon all actions which do not mirror them.  Chief Justice Jim Turner’s actions do not mirror the Religion Clauses of First Amendment of the Constitution.  We order the monument, and all like it, be removed from all government buildings and lands.

Granted, if we were to use this decision as precedent in all future related cases, even our currency would not mention God.  And if we were to remove God completely from the workings of the state, we would have no, or could not acknowledge any, “real” ground upon which to base the decisions of this court.  We would have to make it up as we go, or at least pretend to.  What would it look like if we didn’t pretend, yet protected the freedom of the minds of our citizens?

All quotes taken from:
David M. O’Brien, Constitutional Law and Politics, Volume Two, Seventh Edition, (New York:  W.W. Norton & Company, 2008).

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